Kirkmans v. Rice ( 1843 )

Turley, J.

delivered the opinion of the court.

This is a motion for a judgment against the defendant Rice as sheriff of Sumner county and his securities, for the non-return of an execution. The execution was in favor of H. &. J. Kirk-man the plaintiffs, and against William B. Preston, Moses C. Preston and Jesse Grant, bearing test the third Monday in October, 1841, and returnable the third Monday in February, 1842. This execution came to the hands of the sheriff on the 23d of November, 1841, and was returned by him “not satisfied.” That this is no return, and that the sheriff and his sureties are made liable thereby for the amount of the execution with damages and cost, a.t this day is not a debateable question. But an alias execution on the same judgment was issued bearing test the third Monday in February, 1842, which came to the hands of the same sheriff, and on which he collected some moneys, and paid the m over to the plaintiffs. This, it is contended, was a waiver on the part of the plaintiffs, of the right they had acquired, by reason of the previous non-return, and that the sheriff is discharged thereby from responsibility for his previous neglect. Without entering into the question of what might be the effect of the issuance of an alias by the orders of the plaintiff after a defalcation of a sheriff and without his request, and a reception of money thereon, it is sufficient for this case, that the proof shows most abundantly, that the alias was issued at the request of the sheriff and for his benefit, and that he was expressly informed at the time, that plaintiffs-would not agree that it should amount to a waiver of any rights they had against him on account of his previous neglect, and that this court has heretofore held, that in such case there is a continuing responsibility on the part of the sheriff, and no waiver of right on the part of the plaintiff in the execution. There are some other points mooted on the part of the defence, but not seriously pressed, and we do not think it necessary to notice them, as this is manifestly the point in which this case was determined by the Circuit Judge, assimilating it to the case in 2 Humphreys, 384, which it in no wise resembles. •

The judgment of the Circuit Court is reversed, and we direct a judgment for the unsatisfied amount of the execution against the sheriff and his sureties, with twelve and one half per cent damages thereon and cost.